“Nothing in this Act shall— (a) affect any action, proceedings or arbitration commenced in England and Wales before the day appointed under subsection (2) above [1 October 1985 ]; or (b) apply in relation to any matter if the limitation period which, apart from this Act, would have been applied in respect of that matter in England and Wales expired before that day.” (a) affect any action, proceedings or arbitration commenced in England and Wales before the day appointed under subsection (2) above [1 October 1985 ]; or (b) apply in relation to any matter if the limitation period which, apart from this Act, would have been applied in respect of that matter in England and Wales expired before that day.”
“‘Managers’, in relation to an approved school established or taken over by an education authority or by a joint committee representing two or more education authorities, means the education authority or the joint committee as the case may be, and in relation to any other approved school, means the persons for the time being having the management or control thereof.”
“(1) Subject as hereinafter provided, all rights and powers exercisable by law by a parent shall as respects any person under the care of the managers of an approved school be vested in them . . . (2) The managers of an approved school shall be under an obligation to provide for the clothing, maintenance and education of the persons under their care.”
“In my view, the legal characteristics and structure of the approved school system clearly emerge from the foregoing statutory provisions, which I consider require to be borne in mind in reaching conclusions in regard to the particular responsibilities of those involved in the system. First, the management and control of an approved school were the responsibility of the managers of that school. Pupils at such a school were under the care of the managers. There were vested in the managers all the rights and powers exercisable by law by a parent in relation to any person in the care of the managers in an approved school. The managers had a responsibility to ensure that the conditions of the school and the welfare, development and rehabilitation of the pupils under their care were satisfactory. They had a duty to manage the school in the interests of the welfare, development and rehabilitation of the pupils. The managers were responsible also for decisions relating to the staff at the school, who were to be employed by them. They were responsible for suspension and dismissal of staff, once appointed. The headmaster of the school, who was a member of its staff and employed by the managers, was responsible to them for the efficient conduct of the school in the interests of the welfare, development and rehabilitation of the pupils. In certain respects, reflected in my summary of the relevant legislation, the managers required the approval of the Secretary of State in relation to certain decisions. Furthermore, the Secretary of State was authorised to inspect approved schools through an inspectorate. As regards the funding of approved schools the necessary resources were derived from the Secretary of State and local education authorities. That funding was then used by the managers to meet the various disbursements which they had to make.”
“Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.”
“On various occasions between19 January 1973 and16 September 1974 , both dates inclusive, at Gartmore House, (then known as Saint Ninian’s List ‘D’ School), Gartmore Estate, Stirlingshire, James Andrew McKinstry did assault [JXJ]… then a boy under your charge and under the age of 14 years, handle his private member and masturbate him, repeatedly punched him on the body and seize him by the hair, utter threats and repeatedly insert your finger or fingers into his hinder parts, all to his injury.”
“A claimant sues for personal injury ten years after an alleged accident and seeks an order to disapply the limitation period of three years. The defendant has lost its witnesses and records, but advances a defence that the accident did not occur. The judge concludes, without the lost evidence, that indeed the accident did not occur. The burden is on the claimant to prove that it would be equitable to disapply the limitation period having regard to the balance of prejudice. In those circumstances he would not be able to do so. There would be no purpose in extending the limitation period and it would not be equitable to do so. Similarly, a full exploration at trial of, for example, the claimant's reasons for delay may enable the judge to reach firm conclusions which could have been no more than provisional had limitation been resolved as a preliminary issue.”
“It was a normal occurrence that boys would sit on his knee and tell him problems they may have had. I never felt anything sexual by having to sit on his knee was being implied”
“Do you remember Brother Benedict? Can’t say I do, I think he may have taught how to play the recorder [sic]”
“Die [sic] to Alphonses [sic] announcement, I was the most hated boy in the school”
“I was never popular at St Ninians”
“I was an ostracized loner at St Ninians”
“Once when we were marching in our shorts outside, brother Patrick whipped me with his training whip, it wasn’t the first time, but that time I charged at him and brought him to the ground in front of the whole house room”
“Where a person would be entitled, but for any of the provisions of section 17… of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision.”
“First, in considering prejudice to a defender, it is important to keep in mind that an extension period reimposes the liability that the defender would otherwise have escaped. Secondly, because of that, it is not material that the prejudice suffered by the defender is no worse than would have been the case had the action been raised towards the end of the limitation period. Thirdly, if a defender can show actual prejudice in defending the action, or the real possibility of significant prejudice, it will normally not be appropriate to grant an extension. This is because fundamental legislative policy underlying limitation statute is to avoid the possibility of such prejudice, and if the prejudice can be shown to be real, rather than merely a possibility, that legislative policy applies with its full force and must be given effect. Consequently, existence of actual prejudice to the defendant must always be of the greatest importance in considering whether an extension should be granted.”
“What must matter in weighing the equities and prejudice is whether the loss of evidence and impact on the quality of justice is material...”
“It appears to me that where the allegations of abuse are made against a single person and that person’s evidence has been lost to the defenders then it is really impossible for the defenders to have a fair trial. The defenders are denied the evidence of what would have been their most important witness. They are not able to properly defend themselves.”
“Lord Bannatyne's observations in the case of SF v Quarriers are apposite here. This, too, is a case involving allegations against a single abuser who was long dead. That circumstance alone meant that the defenders could never know what Brother Germanus’ response would have been to the allegations. They could not, as Lord Bannatyne aptly put it, ‘properly’ advance a case that Brother Germanus did not do these things. In the absence of knowing Brother Germanus’ position, the defenders could do no more than put the pursuer to his proof. They could not properly lead a positive case if they had no basis to so do. The several rationales considered in detail by Lord Drummond Young in B v Murray (No. 2) applied with particular force to a case such as this, where an extraordinary length of time had passed. In all of these circumstances, no fair trial was possible. In the whole circumstances, I refuse to exercise the discretion undersection 19Ain favour of the pursuer.”
“Under section 19A of the 1973 act, the court may – if it seems to it equitable to do so – allow an action for damages to proceed even if it would otherwise be time barred. The starting point in relation to an application to the court to exercise this power is that the limitation period, which is the general rule, has expired. The onus is accordingly on the pursuer to show that justice requires the action to proceed even though the limitation period has expired. It is of critical importance that the pursuer provides a reasonable explanation for not raising the action earlier, and if the pursuer does not provide what the court considers a reasonable explanation then the application is likely to be refused. Against the background of the three-year period, the courts have typically not accepted explanations for failing to raise actions within that period where the pursuer has been aware of the abuse, and indeed may have disclosed abuse well before raising the action. Explanations for the delay which have referred to such matters of shame, fear and psychological difficulties as a result of childhood abuse have been unsuccessful. A case in which the court allowed an action against the alleged abuser to proceed well after the expiry of the three-year period, on the basis of evidence of systematic abuse from childhood well into adulthood which has rendered the pursuer emotionally dependent on the defender, was described by the judge as ‘somewhat exceptional’. Further, given that the ordinary limitation period will have expired, if the defendant can show actual prejudice or the real possibility of prejudice in defending the action, that will usually determine the section 19A issue in favour of the defender. In approaching these cases in the way that they have, the courts have been applying the policy of the 1973 Act – given, in particular, that these cases are, in principle, subject to the three year limitation period and that the pursuer requires to persuade the court to allow the action to proceed out of time. That is why legislation is necessary.”
“The Scottish Government is persuaded that cases of childhood abuse have unique characteristics which warrant a specific limitation regime. These characteristics derive from the abhorrent nature of the act, the vulnerability of the victim (who was a child at the time), and the effect of abuse on children. In particular, it is now recognised that the effects of childhood abuse often themselves inhibit disclosure to third parties until many years after the event.”
“The Australian Royal Commission concluded that limitation periods are inappropriate for this class of civil actions. The Scottish government agrees with this conclusion. It considers that whatever factors might cover in the exercise of the court’s discretion, the application of a limitation period to cases of childhood abuse creates an inbuilt resistance to allowing historical claims to proceed which is not appropriate in the context of this class of case. It has the practical effect of protecting abuses (and their employers) from being held to account in the civil courts, while preventing abused survivors from obtaining access to justice and, if they can establish their claims, obtaining reparation for the wrong.”
“1. In order to justify the grant of a stay, a defendant bears a heavy onus. A stay is ordinarily only granted in exceptional circumstances, because it effectively brings to an end litigation without adjudication. 2. The categories of abuse of process are not closed. 3. In particular, the concept of an abuse of process is not confined to cases in which, if the action were to proceed, the defendant would not receive a fair trial. 4. The fundamental test is whether, in the circumstances, the proceeding would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute among right-thinking people.”
“First, it is plain that the [2017] Act was intended to invert the legal or persuasive onus in relation to limitation – it is now for the defender to show that the action should not proceed rather than for the pursuer to show why it should… The starting point in the courts analysis now requires to be that there is no limitation period, and that the pursuer in case is covered by s. 17A he is entitled to bring an action at any time. If the defendant maintains under s.17D(2) that a fair trial is ‘not possible’, s/he requires to ‘satisfy’ the court of that proposition. In cases of retrospective application of s. 17A, such as the present case, the defender requires to ‘satisfy’ the Court under s. 17D(3) there would be substantial prejudice to the defender if the action were to proceed – and the court requires to be ‘satisfied’ that the action should not proceed notwithstanding the pursuer’s interest in that matter. Arguably, the position under s. 17D(2) is relatively straightforward. A fair trial is either possible, or it is not. The position in relation to s. 17D(3) he is potentially more difficult since it involves in essence a prediction about the course of a future trial or proof… Assuming that those authorities are transferable to the court’s deliberations under s.17D(3), the court will presumably be on firm ground if it can conclude that substantial prejudice would be “inevitable” at any proof – as for example in W v Trustees of the Roman Catholic Archdiocese of St Andrews and Edinburgh. Under s. 19A, ‘the real possibility of significant prejudice’ – i.e. something short of inevitability – would normally also have determined the issue in favour of the defender. It will be a matter for the court to determine whether that formulation, approved by the House of Lords in relation to s. 19A, will now suffice in relation to s. 17D.”
“Even if a defender can satisfy the court that substantial prejudice would occur, the court can still decline to dismiss the case if the pursuer’s ‘interest in the action proceeding’ outweighs any prejudice. The policy framework suggests that the legislature was keen to alter the balance of justice in favour of pursuers in abuse cases. Moreover, it is clear that the Scottish government was concerned to emphasise that abused individuals often delayed to bring actions for damages due to fear, shame, guilt, or trauma. The policy aim of the 2017 Act seems to have been to exclude from the court’s consideration delay resulting from these sequelae of abuse. In the event of course, the provisions enacted (in spite of the misgivings of the Justice Committee) appear to envisage circumstances in which delay may result in dismissal. Arguably therefore, the new provisions set up a rebuttable presumption that there is a good explanation for any delay in bringing a claim, removing or restricting the emphasis laid in many of the cases on the conduct of the pursuer.”
“The test is different from that which applies unders.19Aof the 1973 Act where the court has a discretion to override the time limit and allow a case to proceed if it seems to it equitable to do so. Section 17D(2)turns solely on whether it is possible for a fair hearing to take place.”
“In this case, the deceased denied the allegations put to him by police at interview. He put forward the position that the events did not happen and that the sisters had got together to make it up. The situation is similar to the facts before the court in Judd. It contrasts with a scenario where the allegations have never been put to the alleged perpetrator with there being no possibility of them ever being put to him and his position ever being known, because he has died or become incapax. In the present case there is a basis on which to cross examine the pursuer and her sister. At the very least their accounts can be tested against their police statements and possibly against each other’s accounts too. The situation is different in Moubarak by his Tutor Cooney v Holt [[2019] NSWCA 102] relied on by the defender, where at no time prior to becoming incapax, due to the onset of dementia, was the defender ever confronted with the allegations, nor was any police statement ever taken from him.”
“Mr Judd largely accepted that he had in fact engaged in the conduct alleged. His claim was that it was consensual or, alternatively, he reasonably believed it to be lawful. That critical fact marks a material point of distinction between Judd and the facts of the present case, as do the different time frames involved since the alleged assaults in Judd and those in the present case.”
“There was only one conclusion I could reach. I instructed Brother Amedy [the headmaster] for the number of classes to be reduced from 5 to 4 to release Brother Livinus [the depute headmaster] to get down to the essential work of organisation… …It seems to me that the situation calls for the appointment of another teacher (today – possibly a woman). It would be possible as a temporary measure to offer her (if single) accommodation in the new domestic bungalow. The family accommodation is required the same bungalow could be made available as a temporary measure. The resident domestic could be accommodated in the house in the room intended for the brothers (Brother Anthony’s room) if the proposed adaptations to meet the needs of the brothers are undertaken shortly. However it is evident that another house would need to be built ultimately to house extra staff.”
“Bro. Wilfrid said that he had not had the time or opportunity to do a full visitation but thought that with the changes in personnel things were now shaping a bit better. Without being quite a challenging or demanding as he has been on occasion in the past he said that it now behoved the department to provide the further necessary facilities to give the school a chance i.e. the play barn, at least two further staff houses and an office for S.W.Os if it were firm policy to keep St Ninian’s at Gartmore. … We also discussed possible future staff movements. It was agreed that Bro. Adolphus, who was not a strong member of the team should be replaced, and it was recognised that Bro. Philip is now pretty worn out after 35 years very active working Scottish schools.” (c) A report of an inspection by HM Inspector of Schools in October 1976 included this, under the heading “Background”: “St Ninian’s, a school for RC boys, is owned and administered by the De La Salle Order… The head, depute head and several members of staff are members of the De La Salle Order. In recent years, however, there has been an increase in the number of staff employed in the school and two of these now hold senior posts. Another fairly recent development has been the appointment of women as teachers and housemothers.”
“The school is well staffed by mixture of religious and lay personnel. The brothers are very much in charge, providing the headmaster and his depute, the administrator and senior assistant (education). One other brother is a teacher and 1 a social worker. There are 2 thirds in charge, both laymen. Altogether there are 5 teachers and an instructor, 6 social workers and 4 housemothers; a domestic and an assistant domestic; two typists and four male ancillaries – handyman, groundsman, painter and janitor.” 119.In the light of this evidence, I find as follows: (a) Although legal responsibility for the operation of the School lay with the managers, the provincial (who must be taken to have been acting on behalf of the Institute) also exercised considerable de facto control over the operation and organisation of the school. (b) In particular, the provincial understood himself to be able to give instructions to the headmaster about the exercise of his functions as headmaster and in fact gave such instructions. (c) The instructions covered all aspects of the organisation of the School, including the employment and deployment of staff. (d) The provincial also corresponded directly in relation to the School with HM Inspector of Schools, who regarded the School as “administered” by the Institute and saw the DLS brothers as “very much in charge”
“Two elements have to be shown before one person can be made vicariously liable for the torts committed by another. The first is a relationship between the two persons which makes it proper for the law to make the one pay for the fault of the other. Historically, and leaving aside relationships such as agency and partnership, that was limited to the relationship between employer and employee, but that has now been somewhat broadened. That is the subject matter of this case. The second is the connection between that relationship and the tortfeasor’s wrongdoing. Historically, the tort had to be committed in the course or within the scope of the tortfeasor’s employment, but that too has now been somewhat broadened. That is the subject matter of the Wm Morrison case.”
“(i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”
“56. In the context of vicarious liability the relationship between the teaching brothers and the institute had many of the elements, and all the essential elements, of the relationship between employer and employees. (i) The institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body. (ii) The teaching activity of the brothers was undertaken because the provincial directed the brothers to undertake it. True it is that the brothers entered into contracts of employment with the Middlesbrough defendants, but they did so because the provincial required them to do so. (iii) The teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the institute. (iv) The manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the institute’s rules. 57. The relationship between the teacher brothers and the institute differed from that of the relationship between employer and employee in that: (i) The brothers were bound to the institute not by contract, but by their vows. (ii) Far from the institute paying the brothers, the brothers entered into deeds under which they were obliged to transfer all their earnings to the institute. The institute catered for their needs from these funds. 58. Neither of these differences is material. Indeed they rendered the relationship between the brothers and the institute closer than that of an employer and its employees.”
“The business of the institute was not to train teachers or to confer status on them. It was to provide Christian teaching for boys. All members of the institute were united in that objective. The relationship between individual teacher brothers and the institute was directed to achieving that objective.”
“Provided that a brother was acting for the common purpose of the brothers as an unincorporated association, the relationship between them would be sufficient to satisfy stage 1, just as in the case of the action of a member of a partnership. Had one of the brothers injured a pedestrian when negligently driving a vehicle owned by the institute in order to collect groceries for the community few would question that the institute was vicariously liable for his tort.”
“a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or other third-party), and where the commission of the wrongful act as a risk created by the defendant by assigning those activities to the individual in question.”
“By focussing upon the business activities carried on by the defendant and its attendant risks, it directs attention to the issues which are likely to be relevant in the context of modern workplaces, where workers may in reality be part of the workforce of an organisation without having a contract of employment with it, and also reflects prevailing ideals about the responsibility of businesses for the risks which are created by their activities.”
“The other lesson to be drawn from Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd, E v English Province of Our Lady of Charity and the Christian Brothers case is that defendants cannot avoid vicarious liability on the basis of technical arguments about the employment status of the individual who committed the tort. As Professor John Bell noted in his article, ‘The Basis of Vicarious Liability’ [2013] CLJ 17, what weighed with the courts in E v English Province of Our Lady of Charity and the ‘Christian Brothers’ case was that the abusers were placed by the organisations in question, as part of their mission, in a position in which they committed a tort whose commission was a risk inherent in the activities assigned to them.”
“The question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant. In doubtful cases, the five ‘incidents’ identified by Lord Phillips may be helpful in identifying a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability. Although they were enunciated in the context of non-commercial enterprises, they may be relevant in deciding whether workers who may be technically selfemployed or agency workers are effectively part and parcel of the employer’s business. But the key, as it was inChristian Brothers[2013] 2 AC 1 ,Cox[2016] AC 660 andArmes[2018] AC 355 , will usually lie in understanding the details of the relationship. Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider the five incidents.”